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Insurer’s Failure to Perform Physical Examination ....

Attached is an unpublished case out of the Sixth Circuit, Guest-Marcotte v. Life Insurance Company of North America, et. al. In this case, plaintiff seeks STD benefits under a self-funded plan administered by LINA. The case is on appeal from the district court which found that defendant did not abuse its discretion in denying plaintiff’s claim. Plaintiff suffered from an objectively diagnosed medical condition which caused chronic pain. The Sixth Circuit reversed the district court finding that LINA’s failure to conduct a physical examination was an abuse of discretion and remands the case.

LINA’s decision to deny STD benefits was arbitrary and capricious because LINA had the option to conduct a physical examination, yet declined to do so even though there was a clear medical consensus that Guest-Marcotte suffered from EDS Type III—a disease medically known to cause chronic and severe pain—and abundant evidence that she in fact experienced such pain. Our cases emphasize that “the failure to conduct a physical examination, where the Plan document gave the plan administrator the right to do so, ‘raises questions about the thoroughness and accuracy of the benefits determination.’” Id. at 550 (quoting Helfman v. GE Grp. LifeAssurance Co., 573 F.3d 383, 393 (6th Cir. 2009) (alteration adopted)). In particular, when an employee contends that she is disabled by chronic pain, and the relevant ERISA plan gives the administrator the right to physically examine the employee, we have held that a plan administrator’s decision to discount those complaints of pain without conducting a physical examination “weighs in favor of a determination that the denial of [the employee’s] claim was arbitrary and capricious.” Godmar v. Hewlett-Packard Co., 631 F. App’x 397, 407 (6th Cir. 2015); see Shaw, 795 F.3d at 550; Fura, 534 F. App’x at 343; Smith v. Cont’l Cas. Co., 450 F.3d 253, 263–64 (6th Cir. 2006); Calvert v. Firstar Fin., Inc., 409 F.3d 286, 297 n.6 (6th Cir. 2005). While it is true that “there is ‘nothing inherently objectionable about a file review by a qualified physician,’” we have repeatedly cautioned that plan administrators should not make “credibility determinations concerning the patient’s subjective complaints without the benefit of a physical examination.” Smith, 450 F.3d at 263 (quoting Calvert, 409 F.3d at 296).

Here, the Plan expressly gives LINA the right to “require a medical examination, at its own expense and as often as [it] may reasonably require.” On the facts of this case, LINA should not have discounted Guest-Marcotte’s claims of disabling chronic pain without exercising that right. Guest-Marcotte has been diagnosed with EDS Type III numerous times by numerous medical professionals—including Dr. Tinkle, a renowned expert on the disease—and EDS is known to cause severe and chronic pain. Indeed, LINA has never disputed the fact that Guest Marcotte has EDS. These diagnoses provided good reason to believe that Guest-Marcotte actually suffered from debilitating pain, and multiple doctors informed LINA that the pain would make it impossible for Guest-Marcotte to drive, sit still, or concentrate for extended periods. Under these circumstances, it was not reasonable for LINA to brush aside her claims of debilitating pain without first performing a physical exam.

LINA responds that it did not make a credibility determination: while LINA concedes that Guest-Marcotte subjectively feels pain, it maintains that she nevertheless failed to prove through objective evidence how her pain renders her unable to do her job. In other words, argues that it could reasonably accept Guest-Marcotte’s subjective reports of, yet still demand that she produce objective evidence of how that pain limited her functionality. This logic is flawed, however, because Guest-Marcotte’s fundamental claim is that her pain is so severe and persistent that it precludes her from sitting still and concentrating long enough to do her desk job. To deny her benefits, LINA necessarily had to disbelieve this claim, and that is the essence of a credibility determination.

LINA also argues that the Plan places the burden on Guest-Marcotte to offer “satisfactory proof” of her disability, and that Guest-Marcotte is impermissibly attempting to shift her burden to LINA by requiring LINA to conduct a physical examination to prove she is not disabled. However, this argument distorts the language of the Plan. While it is true that the Plan requires Guest-Marcotte to demonstrate her disability by “satisfactory proof,” nowhere does the Plan specify that only proof of objectively observable limitations will suffice. Guest-Marcotte has offered plenty of proof that she suffers from EDS, which causes severe chronic pain that could well make it impossible for her to perform the mental functions of her job. She has, at the very least, produced enough evidence of her disability to require LINA to respond by conducting a physical examination. That distinguishes this case from cases like Filthaut v. AT & T MidwestDisability Benefit Plan, No. 16-2707, 2017 WL 4511487, at * 7 (6th Cir. Oct. 10, 2017), in which the claimant wholly failed to produce objective medical evidence of her condition, and (unlike Guest-Marcotte’s plan) such evidence was explicitly required by the plan, see id. at *1, *5.

This is also not a case where the claimant suffers from a disease which can be difficult to
diagnose objectively, like fibromyalgia or back pain. For this reason, LINA’s reliance on our fibromyalgia and back-pain caselaw is misplaced. LINA cites Rose v. Hartford FinancialServices Group, Inc., 268 F. App’x 444, 453 (6th Cir. 2008), in which we observed that “it is entirely reasonable for an insurer to request objective evidence of a claimant’s functional capacity.” LINA argues that, under Rose, it was entitled to insist that Guest-Marcotte produce objective evidence of how her pain impacted her ability to work, and that, in the absence of such evidence, it reasonably denied her claim based on a file review. Rose, in turn, cited our decision in Cooper v. Life Insurance Company of North America, 486 F.3d 157, 166 (6th Cir. 2007), for the proposition that “[r]equiring a claimant to provide objective medical evidence of disability is not irrational or unreasonable.” The instant case, however, is distinguishable from Rose and Cooper. The employee in Rose had, among other conditions, fibromyalgia and chronic fatigue syndrome. 268 F. App’x at 448. In Cooper, the employee suffered from lower back pain. 486
F.3d at 159. Fibromyalgia, chronic fatigue syndrome, and back pain are all notoriously difficult to diagnose through objective medical evidence. See Rose, 268 F. App’x at 454 (noting that fibromyalgia and chronic fatigue syndrome “are diagnosed through an evaluation of an individual’s subjective complaints of pain”); Cooper, 486 F.3d at 173 (Sutton, J., concurring in part). In evaluating these kinds of disability claims, a requirement that the employee produce objective evidence of functional limitations may be sensible. In this case, however, no one disputes Guest-Marcotte’s diagnosis: all agree she has EDS Type III, a hereditary disease which is medically known to cause frequent joint dislocations and subluxations along with chronic pain.
The record shows that Guest-Marcotte has in fact suffered such frequent dislocations and subluxations, which can be reasonably expected to result in significant pain. Under these circumstances, where there is no dispute that the claimant suffers from a genetic disease that produces severe and chronic pain, it was arbitrary and capricious for LINA to deny her disability claim without exercising its right to conduct a physical examination.